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Defamation 9-11

Peter Damon
Sgt. Peter Damon

Peter Damon is a former reservist who appeared in Michael Moore’s film, Fahrenheit 911.

Damon was an Army Reserve Sergeant who served in the National Guard’s 126th Aviation Unit based at Camp Edwards on Cape Cod, Massachusetts. On October 21, 2003, while on active duty at the National Guard facility in Balad, Iraq, a tire on a Black Hawk helicopter exploded while he and another reservist were servicing the aircraft. As a result of the explosion, Damon lost his right arm near the shoulder and his left arm above the wrist; the Army reservist who was assisting Damon was killed. Following the incident, Damon was transported to Walter Reed Army Medical Center in Washington, D.C. (“Walter Reed”), where he was treated by Army medical personnel with a new pain blocker.

On October 31, 2003, while Damon was awaiting surgery, an anesthesiologist asked him to do an interview with Brian Williams of NBC about the new pain blocker. Although heavily sedated, he agreed to the interview. In the NBC clip, Damon appears on the screen for less than thirty seconds, speaking to an interviewer regarding the new pain blocker with his injured arms in bandages.

Damon was not asked about his political views, but in his suit he claimed that the documentary was an attack upon the integrity of George W. Bush and the war effort. He therefore alleged that his unwitting appearance in Fahrenheit 911 falsely portrayed him as concurring with Michael Moore’s negative opinion of George W. Bush and the Iraq War.

Damon contend[ed] that his appearance in the documentary portrays him as endorsing the political views of Moore; views that are contrary to his own and repugnant in the military and veteran community.

The Court explained the role of the court in answering the question of law that is central to a defamation claim — is the statement complained of capable of a legally defamatory meaning?

To prevail on a defamation claim “under Massachusetts law, a plaintiff must show that the defendant was at fault for the publication of a false statement of and concerning the plaintiff which was capable of damaging his or her reputation in the community, and which either caused economic loss or is actionable without proof of economic loss.” The court is not called upon to determine the ultimate issue of whether the statement is defamatory, but to answer the “threshold question” of “‘whether [the] communication is reasonably susceptible of a defamatory meaning.’” (cites omitted)

The court then explained “susceptible to a defamatory meaning”:

A communication is susceptible to defamatory meaning if it would tend to injure the plaintiff’s reputation, or “hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community.” In determining whether a statement is susceptible to defamatory meaning, “[t]he communication ‘must be interpreted reasonably,’” and can only be ruled defamatory if it would lead “a ‘reasonable reader’ to conclude that it conveyed a defamatory meaning.” However, “[w]here the communication is susceptible of both a defamatory and non-defamatory meaning, a question of fact exists for the jury.”

or documentary?

That doesn’t mean that any hypersensitive plaintiff can get through to a jury. The judge is supposed to employ his own independent legal reasoning. It is nice to see that they do that in Massachusetts. In some states, the judges shirk this responsibility.

The Court gave Mr. Damon more respect than he was due. The Court first considered whether the public at large would see his portrayal in the film as defamatory, and determined that no reasonable viewer could come to that conclusion.

Then, the court considered how “a military viewer” would interpret Damon’s appearance in Fahrenheit 911.

While it is clear that military and civilian communities may very well view certain situations, e.g. a soldier’s refusal to return to battle, differently, this is not one of those situations. Taking the documentary as a whole, no reasonable member of the military or veteran community could possibly view Damon’s appearance in the documentary as being disloyal to the United States. As explained above, Damon makes no statements in opposition to the war effort, nor was his interview manipulated in such a way to imply that he was “attacking the war aims of the United States.

he was not portrayed as denouncing the military, any of its war aims or the President. Instead, Damon spoke solely about his medical treatment after valiantly serving his country. Accordingly, there is no reason to believe that a reasonable member of the military or veteran community would conclude that Damon’s appearance in the documentary conveyed a defamatory meaning, and therefore lowered his reputation or subjected him to scorn, hatred, ridicule or contempt in that community.

I’m not sure that it is proper to analyze a defamation claim under a different standard for a member of the military. Nevertheless, the First Circuit seemed to go out of its way to give Mr. Damon his day in court plus a little bonus analysis. Too much analysis can sometimes be a bad thing, but they came to the correct conclusion.

While we appreciate Damon’s anger and frustration over appearing without his consent in a documentary that stands in direct contrast to his own personal and political beliefs, we conclude that his appearance in the documentary is not reasonably susceptible of a defamatory meaning.

Damon v. Moore, __ F.3d __ (1st. Cir. 2008)

While I have nothing but sympathy for Mr. Damon (he lost limbs in this obscene war, after all) I am highly disappointed in him too. The military oath contains the words: “I solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic.” Bringing a patently bogus defamation claim is a broadside fired right at the First Amendment. Doing so in support of the current commander-in-chief is a double whammy, and IMHO, worse than spitting on the flag.

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